While the FMLA does not require an employer to reduce its performance standards when an employee is actually on the job, the FMLA “can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave,” according to the United States Court of Appeals for the Seventh Circuit. Pagel v TIN, Inc. (7th Cir August 9 2012). In reversing summary judgment for the employer, the Court stated that the plaintiff had produced evidence that the defendant terminated him in part for not meeting sales expectations which had not been reduced to take his FMLA absences into account.
Prior to terminating for performance an employee who has taken FMLA leave, an employer must ensure it has made the appropriate “performance standard” adjustment to account for FMLA absences. This issue arises in a variety of contexts, both with employees who have objective performance criteria such as sales quotas or performance scores as well as with employees without objective performance metrics.